Doug Wilson Enterprises

National Labor Relations Board - Board Decisions

Jun 28, 2001

334 N.L.R.B. 394 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
Doug Wilson Enterprises, Inc. and United Brother-
hood of Carpenters and Joiners of America, Lo-
cal 1765, AFL–CIO. Cases 12–CA–20155 and
12–RC–8357
June 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On November 27, 2000, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Doug Wilson Enterprises, Inc., Cape Ca-
naveral, Florida, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discriminat-
ing against employees because of their union or other
protected, concerted activities, or in order to attempt to
mask the unlawful motive for such conduct.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
William Baumgardner and Mark Oropeza full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge, in his recommended Order and notice, failed to set forth
the full names of all discriminatees and failed to conform fully to the
requirements set forth in Indian Hills Care Center, 321 NLRB 144
(1996). Accordingly, we have modified the Order and notice as neces-
sary.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
William Baumgardner, Mark Oropeza, Michael Dia-
mond, and William Mutter, and within 3 days thereafter
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
(c) Make William Baumgardner, Mark Oropeza, Mi-
chael Diamond, and William Mutter whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.
(d) Preserve and, within 14 days of this request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Cape Canaveral, Florida, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 26,
1999.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the election held on
June 11, 1999, in Case 12–RC–8357, is set aside and that
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
334 NLRB No. 51
DOUG WILSON ENTERPRISES 395
the case is remanded to the Regional Director of Region
12 for the purpose of conducting a new election.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT lay off, discharge, or otherwise dis-
criminate against employees because of union or other
protected, concerted activities, and WE WILL NOT dis-
criminate against employees in order to attempt to mask
the unlawful motive for such conduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer William Baumgardner and Mark
Oropeza full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make William Baumgardner, Mark
Oropeza, Michael Diamond, and William Mutter whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of William Baumgardner, Mark
Oropeza, Michael Diamond, and William Mutter, and
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the discharges
will not be used against them in any way.
DOUG WILSON ENTERPRISES, INC.

Michael Maiman, Esq., for the General Counsel.
Wayne Helsby, Esq., and Paul Scheck, Esq. (Allen, Norton &
Blue, P.A.), for the Respondent.
James Harvey, Director of Organizing, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge in Case 12–CA–20155 was filed on May 28,
1999,1 by United Brotherhood of Carpenters and Joiners of
America, Local 1765, AFL–CIO (the Union) and an amended
charge on August 31. Complaint issued on February 28, 2000,
and alleged that on May 26 Doug Wilson Enterprises, Inc. (Re-
spondent or the Company), laid off Jay Baumgardner, Michael
Diamond, William Mutter, and Mark Oropeza because they
joined and assisted the Union and engaged in concerted activi-
ties, in order to discourage employees from joining the Union.
Pursuant to a Stipulated Election Agreement, in Case 12–
RC–8357, a secret-ballot election was conducted among Re-
spondent’s voters in an appropriate unit on June 11. Of ap-
proximately six eligible voters, two cast votes for the Union,
and three against it, with one challenged ballot. Accordingly,
the Union did not receive a majority of the valid votes counted
plus the one challenged ballot. The Union filed timely objec-
tions to the election, which inter alia alleged that Respondent
terminated all bargaining unit employees on receipt of the peti-
tion. The cases were consolidated for hearing on March 20,
2000.
A hearing on these matters was conducted before me on May
8, 2000, in Cocoa, Florida. Thereafter, the General Counsel
and Respondent filed briefs. On the basis of the entire record,
including my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida corporation, with a place of business
in Cape Canaveral, Florida, where it is engaged in the construc-
tion business. During the 12 months preceding issuance of the
complaint, Respondent received at its Cape Canaveral facility
and at other jobsites located in the State of Florida goods val-
ued in excess of $50,000 directly from points outside the State
of Florida. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Employment of Baumgardner and Oropeza
Respondent hired William Jay Baumgardner in May 1998.
He testified that he was hired as a carpenter and did carpentry
work. Company President Douglas Wilson testified that his
employees were classified as “skilled labor” and did a variety
of jobs, including sweeping the floor. The Stipulated Election
Agreement describes the employees as “carpenters.”2
Baumgardner’s beginning wage rate was $8.50. A few
months later it was raised to $10.59. He recommended Mark

1 All dates are in 1999 unless otherwise specified.
2 GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
Oropeza to the Company, and the latter was hired in October
1998, without an interview upon filing an application.
Baumgardner and Oropeza thereafter worked as a team, and
received many compliments from Wilson. There is no record
of any oral or written discipline during their period of employ-
ment.
B. The Union Activity
In February 1999, union representatives approached employ-
ees at a jobsite and discussed the Union. In March Baumgard-
ner and Oropeza joined the Union and signed union authoriza-
tion cards. They were the only employees to do so. On May
20, Baumgardner and Oropeza were working at a jobsite where,
they testified, Mike Hilligoss was the company superintendent.
On that day, May 20, the Union filed its petition in the repre-
sentation case. On the next day, May 21, Baumgardner and
Oropeza showed their authorization cards to Hilligoss and told
him that they supported the Union. Oropeza wore a union shirt.
Baumgardner and Oropeza testified that Hilligoss was the
highest ranking company official on the jobsite, and was “the
boss.” They could not leave the jobsite during working hours
without his permission. He dealt with subcontractors, and
worked about 1 percent of the time with tools of the trade. He
sent Baumgardner and Oropeza to Home Depot for supplies.
Company President Wilson testified that he ran numerous
projects at the same time. In the office were “project manag-
ers” who spent time on the telephone bidding on new jobs.
“Superintendents” and “skilled labor” were at the jobsites. The
“skilled labor” floated from jobsite to jobsite depending on
need. A superintendent would call a project manager and state
that he needed help. The project manager would then arrange
to have an employee from another site transferred.
Wilson discussed “superintendents” and “crew leaders.” He
stated that “superintendent” could hire and fire, that they
worked with the architects, and could make certain changes in
plans. “Crew leaders,” also called “lead men” could not hire or
fire without the approval of the project manager. Wilson stated
that Hilligoss was a leadman.
In response to the General Counsel’s subpoena, Respondent
supplied a list of all personnel with job descriptions. That
document lists Mike Hilligoss as a superintendent.3 The Stipu-
lated Election Agreement lists all eligible voters and excludes
supervisors.4 Hilligoss is not listed as an eligible voter.
C. The Layoffs of Baumgardner and Oropeza
Five days after the disclosure to Hilligoss, Baumgardner and
Oropeza were working at the “MRI” jobsite. Baumgardner was
installing floorboards. At about 1 p.m., Wilson came to the
jobsite. This had never occurred prior to this time. He had a
conference with Hilligoss, and returned at about 2 p.m. He
approached the employees and told them that they were being
laid off due to lack of work. Baumgardner asked, “What about
the work I’m doing now?” Wilson told him to get his tools and
get off Wilson’s property. Wilson was very nervous, and his
hands were shaking. He handed the employees a document
stating that they were being laid off due to lack of work, and

3 GC Exh. 8.
4 GC Exh. 3.
paid them each with checks up to the date of layoff. Neither
employee has been recalled.
D. The Layoff and Recall of William Mutter and
Michael Diamond
Respondent laid off other employees on May 26 for the same
asserted reason, lack of work, or, as Wilson put it, the failure to
get enough new jobs. The complaint alleges that two of these
layoffs, those of Mutter and Diamond, were discriminatorily
motivated. Mutter had been working on the same project with
Baumgardner and Oropeza. He was recalled to the same job on
the payroll ending June 8, just a few days after his layoff. Wil-
son’s explanation was that MRI, a health care facility, wanted
an office for a new doctor and Mutter was on that job for a
week. On the following week, according to Wilson, Mutter
was employed on a new project. Wilson also recalled Michael
Diamond. His reason, Wilson stated, was that one project was
running ahead of schedule, and they brought Diamond back to
help install forms around the ground floors. Wilson asserted
that he used seniority and performance as criteria in his selec-
tion of employees for recall.
E. Respondent’s Additional Reasons for the Layoff of
Baumgardner and Oropeza
In early 1999, Oropeza, prior to the time they signed union
authorization cards, and Baumgardner were working on a Fri-
day in a “clean room” at Cape Canaveral. The workday ran
from 7 a.m. until 3 p.m. After they got started, the NASA ad-
ministrator informed Respondent that they were creating too
much dust, and that the work had to stop. They were informed
of this fact by Bill Cross, Respondent’s supervisor on the pro-
ject. Cross gave them their paychecks for the pay period.
Baumgardner and Oropeza gathered up their tools and equip-
ment, and checked out through security. Tim Sanders, a super-
visor for Respondent, testified that Bill Cross was told to direct
the employees to another project. When they did not appear,
Sanders asserted that Cross was called to verify that he had
transmitted this order, and Cross did so. Baumgardner and
Oropeza denied that Cross had given them any such order.
Cross did not testify.
Baumgardner and Oropeza then decided to quit work for the
day. They went to a local establishment that served food and
beer. Tim Sanders came in, and testified that he saw a pitcher
of beer and glasses on the employees’ table. He told the em-
ployees to report to Wilson’s office the following Monday.
They did so, and the meeting was attended by Wilson, Sanders,
Baumgaredner, and Oropeza. Wilson told them that they could
have checked with the office by using their mobile phones to
determine whether they were needed elsewhere. The employ-
ees agreed, and apologized for not calling in. Sanders apolo-
gized for his actions in the restaurant. There is no evidence that
Baumgardner or Oropeza received oral or written discipline as
a result of this incident.
Company President Wilson gave an extended rationale for
the layoffs in May. He concluded in April that the Company
was not acquiring enough new jobs to sustain his payroll. He
then had about 12 employees and decided to layoff 7. Actu-
ally, Wilson laid off five, five of them alleged. Of these, only
DOUG WILSON ENTERPRISES 397
Baumgardner and Oropeza had engaged in union activity. Mut-
ter and Diamond, were recalled. The fifth employee, who was
laid off on May 26, was also recalled. Union Official Robert
McCoy testified that he investigated the number of Respon-
dent’s jobs since the time of the June election. Respondent’s
practice was to place a company sign or a dumpster with the
company name on it at jobsites where it was working. McCoy
submitted pictures of some of these jobsites.5
At the hearing, Wilson advanced additional reasons for the
layoffs of Baumgardner and Oropeza. Thus, they did not get
along with other employees, had alcohol on their breath at
times, made racial slurs, and falsified time reports. Wilson
agreed that none of these allegations is made in an affidavit,
which he submitted in response to an investigatory subpoena,
and the employees denied them.
F. Factual and Legal Conclusions
The General Counsel has the burden of establishing a prima
facie case that is sufficient to warrant an inference that pro-
tected conduct was a motivating factor in an employer’s deci-
sion to discipline an employee. Once this is established, the
burden shifts to the Respondent to demonstrate that the disci-
pline would have been administered even in the absence of the
protected conduct. The General Counsel must supply persua-
sive evidence that the employer acted because of antiunion
animus.
It is undisputed that Baumgardner and Oropeza joined the
Union and signed union authorization cards. There is also no
dispute that they showed the union cards to Michael Hilligoss
on May 21, the day after the Union filed its petition in the rep-
resentation case. There is also no dispute that Respondent laid
them off 5 days later, on May 26, and has not recalled them.
Respondent gave a variety of reasons for the layoffs. The
first reason was lack of business. This reason is not persuasive.
Two other employees who had not engaged in union activity
were laid off at the same time, but were both recalled, one
within a few days to the same job on which Baumgardner and
Oropeza had been working. A union agent observed and took
photographs of various construction sites, which had Respon-
dent’s sign or a Dumpster after the layoffs. There was no ad-
vance notice of the layoffs, contrary to Respondent’s custom.6
Wilson showed up at the jobsite and had a consultation with
Hilligoss, contrary to his usual custom. When Baumgardner
was told that he was being laid off because of lack of work, he
asked about the work in which he was then engaged. Wilson
told him to get off Wilson’s property.
At the hearing Wilson added new reasons—failure to get
along with other workers, alcohol on their breath, racial slurs,
and falsification of records, reasons which he had failed to
enumerate by a prior affidavit. The incident where Baumgard-
ner and Oropeza left the job at Cape Canaveral on midday be-
cause they were causing dust had no probative value. The su-

5 GC Exhs. 17 and 23. Some of the jobsites are those of the Sun
Trust Bank, the Cocoa Beach Chamber of Commerce, the Ashburny
Arms Hotel, and the United Methodist Church.
6 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981); approved NLRB v. Transportation Management Corp., 462 U.S.
393 (1983); Manno Electric, 321 NLRB 278 fn. 12 (1996).
pervisor who assertedly told them to report to another job was
not called as a witness. In any event, apologies were ex-
changed in a meeting with the company president, and no oral
or written discipline was administered.
In order to establish that an employer disciplined an em-
ployee because of union activity, the General Counsel must
prove that the employer had knowledge of that activity. The
Board has inferred employer knowledge in various circum-
stances, such as cases where the employee attended a union
meeting or wore distinctive union insignia.7 Baumgardner and
Oropeza attended a union meeting, and wore a union shirt.
The General Counsel argues that Michael Hilligoss was an
agent of Respondent, based on his dealings with subcontractors
and his purchase of supplies on the employer’s behalf. Accord-
ingly, the employees’ notification to Hilligoss of their union
allegiance constituted notice to respond.8 There is no doubt
that Hilligoss engaged in these activities and manifested appar-
ent authority from Respondent to do so. The General Counsel
argues that this authority was manifested to the employees as
well as the subcontractors and suppliers. Section 2(2) of the
statute includes in the definition of “employer” any person
acting as an agent of the employer. On this reasoning, when
the employees notified Hilligoss of their union activities, they
were notifying the employer.
And, finally, there is the testimony of the employees that
Hilligoss was “the boss,” the top official at the jobsite, and that
they could not leave without his permission. Company Presi-
dent Wilson defined Hilligoss as a leadman. It is difficult to
credit this testimony in light of the fact that Respondent’s own
personnel records list Hilligoss as a superintendent. Wilson
testified that superintendents had authority to hire and fire.
Hilligoss was not called as a witness, and I infer that he
would have testified adversely to Respondent’s cause if he had
been called.
On the basis of the foregoing reasons, I conclude that Re-
spondent had knowledge of Baumgardner’s and Oropeza’s
union activities.
I further conclude that Respondent’s reasons advanced for
the layoffs of Baumgardner and Oropeza, stated above, are
implausible or contradicted by other believable evidence. I
therefore find that they are pretexts. The Company’s submis-
sion of shifting and pretextual reasons for these layoffs war-
rants an inference that the real reason was something other than
that stated by Respondent. The court of appeals for the Eighth
Circuit has stated “both implausible explanations or false and
shifting reasons support a finding of illegal motivation (authori-
ties cited). Where an employer’s explanation fails to withstand
scrutiny, it is considered pretextual and buttresses the General
Counsel’s prima facie showing of unlawful discrimination.”
York Products v. NLRB, 132 LRRM 2030, 2033 (8th Cir 1989).
Other evidence of Respondent’s unlawful motivation is the
fact that the layoffs took place only 5 days after the employees
notified Respondent of their union activities. In a case where
the employer discharged employees 9 days after the advent of
7 The Developing Labor Law, 3d Ed. (ABA Section of Labor and
Employment Law, 1988) p. 113.
8 GC Br., 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
the union movement, the Court of Appeals for the Second Cir-
cuit deemed the “stunningly obvious timing of the layoffs,” in
addition to other evidence to be sufficient to warrant an infer-
ence of unlawful motivation. NLRB v. Novelty Products Co.,
424 F.2d 748, 750 (2d Cir. 1970).
Respondent’s departure from its custom of giving advance
notice of pending layoffs is further evidence of its illegal moti-
vation. Wilson simply showed up at the jobsite without notice,
and told the employees to get off his premises.
I conclude that Baumgardner and Oropeza were laid off on
May 26, because of their union activities, in violation of Sec-
tion 8(a)(3) and (1).
With respect to Michael Diamond and William Mutter, who
did not engage in union activities, the General Counsel argues
that Respondent laid them off in order to legitimize the layoffs
of Baumgardner and Oropeza, and thus to defeat the union
movement.9 Since Baumgardner and Oropeza were proponents
of the Union, their departure would tend to reduce the chances
of a successful union campaign. However, the departure had to
be “legitimate” in order to be successful. The layoffs of Dia-
mond and Mutter for the same asserted reason, lack of work,
would tend to support that reason. However, the reason was
pretextual. As the Eighth Circuit has stated, “implausible ex-
planations and false or shifting reasons support a finding of
illegal motivation.” York Products, supra. The only possible
motive Respondent could have had for the layoffs of Diamond
and Mutter was to make it appear that the “lack of business”
reason was valid. The layoffs of Diamond and Mutter thus
supported the unlawful layoffs of Baumgardner and Oropeza,
and were themselves unlawful.
In accordance with my findings above, I make the following
CONCLUSIONS OF LAW
1. Respondent Doug Wilson Enterprises, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of America
Local 1765, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By laying off William Jay Baumgardner and Mark
Oropeza on May 26, 1999, because they engaged in union ac-
tivities, and by laying off Michael Diamond and William Mut-

9 GC Br., p. 9.
ter on the same date to legitimize the pretextual reason ad-
vanced for the layoffs of Baumgardner and Oropeza, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in certain un-
fair labor practices, it is recommended that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully laid off
William Jay Baumgardner and Mark Oropeza on May 26,1999,
I shall recommend that Respondent be required to offer them
immediate reinstatement to their former positions, dismissing if
necessary any employees hired to fill those positions, or, if
those positions do not exist, to substantially equivalent posi-
tions, and to make them whole for any loss of earnings they
may have suffered by reason of Respondent’s unlawful conduct
by paying each of them a sum of money equal to the amount he
would have earned from the date of his layoff to the date of an
offer of reinstatement, less net earnings during such period, to
be computed in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950) with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).10 I shall recommend that Respondent be required to
remove from its records all references to its unlawful layoffs
found and inform each of the employees in writing that it has
done so and that the layoffs will not be used as the basis of any
future discipline.
I shall also recommend that Respondent be required to make
Michael Diamond and William Mutter whole for any loss of
earnings they may have suffered by reason of Respondent’s
unlawful conduct in the manner set forth above.
The Union’s objection to the unlawful termination of bar-
gaining unit employees is sustained by the record, and warrants
setting aside the election.
[Recommended Order omitted from publication.]

10 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in 26 U.S.C. § 6621.
Interest accrued before January 1987 (the effective date of the amend-
ment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).